Thursday, December 23, 2021

GROUNDHOG DAY: Arizona Republic Explains To Arizona Supreme Court Why Cyber Ninjas Must Turn Over Election "Audit" Public Records (READ Response)

 If it's a day ending with a "y", then it must be time for someone to file a brief with a court explaining why the Cyber Ninjas has a responsibility under Arizona public records law to turn over requested documents related to the extended post-election "audit" it was hired by Arizona State Senate President Karen Fann to conduct.

It was the Arizona Republic's turn, and they explained to the Arizona Supreme Court why "It is time to bring this litigation toward its conclusion, and accordingly Cyber Ninjas’ Petition should be denied or, in the alternative, this Court should affirm the courts below."

Just relating the convoluted history of this case (and the parallel suit brought by American Oversight) took several pages of the 27-page argument (below), and barely contained the frustration felt by the attorneys for the newspaper. The legal arguments also were familiar to anyone who has paid even a smidge of attention to the legal battle.

One newish problem for the Cyber Ninjas and attorney Jack Wilenchik is that the rift between the Ninjas and the State Senate appears to be widening and that the Ninjas are claiming they do not have the funds to comply with the court's requests. And, as reported previously, Doug Logan (the head Ninja) is due for a deposition on January 5.

The Arizona Supreme Court could decide at any point on whether to grant the Cyber Ninjas' Special Action request for relief.

This article was reported by AZ Law founder Paul Weich. Paul is currently running for a seat in Arizona's House of Representatives.

"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

AZ Law airs on non-profit Sun Sounds of Arizona, a statewide reading service that provides audio access to printed material for people who cannot hold or read print material due to a disability. If you know someone who could benefit from this 24/7 service, please let them know about member-supported Sun Sounds. And, YOU can donate or listen here. 

Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcasts.


Thursday, December 16, 2021

BREAKING: Cyber Ninjas' Doug Logan To Be Deposed In Election "Audit"/Public Records Lawsuit, Judge Adds CNI As Party

The election "audit" masterminds received a hard one-two combination today in the State Senate's ongoing battle to not turn over public records related to the process. Plaintiff American Oversight noticed out the deposition of head Cyber Ninja Doug Logan, for January 5. And, the judge also added Cyber Ninjas as a defendant in the lawsuit.

Logan will be videotaped for the deposition, although he does not need to come back to Phoenix for it. 

And, Superior Court Judge Michael Kemp agreed with attorneys for both AO and the State Senate that Cyber Ninjas should be added to the lawsuit as a real party in interest. This traces back to the apparent rift between State Senate President Karen Fann and Logan, as the parties are at risk of being held in contempt of court for not turning over key documents.

Cyber Ninjas had asked to only participate in the case as an Amicus - a "friend of the court". Judge Kemp was not pleased with the attorney's (Jack Wilenchik's) request, given that he had already considered and ruled on the issues Wilenchik proposed to raise - "that records in the
possession of CNI that have a substantial nexus to the audit are public records that must be
disclosed. CNI asks this Court to reverse a holding after special action relief was denied on August 19, 2021, on these same issues." Kemp notes that the Court of Appeals again denied those arguments last month, and that the Ninjas are simply an agent of the State Senate (and are thus not an independent party).


(h/t to my friend @Modernista64)

This article was reported by AZ Law founder Paul Weich. Paul is currently running for a seat in Arizona's House of Representatives.

"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

AZ Law airs on non-profit Sun Sounds of Arizona, a statewide reading service that provides audio access to printed material for people who cannot hold or read print material due to a disability. If you know someone who could benefit from this 24/7 service, please let them know about member-supported Sun Sounds. And, YOU can donate or listen here. 

Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcasts.

Wednesday, December 15, 2021

UPDATE: AZ AG Brnovich Suit Against Biden Vaccine "Mandate" Continues To Unravel; Filing THIRD Amended Complaint In Three Months (READ Stipulations)

Update, 12/17, 8pm: UPDATE: AZ AG Brnovich Suit Against Biden Vaccine "Mandate" Continues To Unravel; Filing THIRD Amended Complaint In Three Months 

There's a price to be paid for rushing to be the first in the nation to file a lawsuit against the Biden Administration's COVID-19 vaccine "mandate", as Arizona Attorney General Mark Brnovich told the court tonight that they will file a Third Amended Complaint on Monday. The case was filed only three months ago (before the intended policy had been formally introduced).

It took the Attorney General's Office three separate Friday night Stipulations with the other parties to try to untangle the separate strands and get them into a presentable shape:

  • (1) The AG had to acknowledge that it needed to file a 3rd Amended Complaint and that it would do so by noon on Monday. It will keep all of the same claims for relief, but will make it clear that the so-called "Immigration Counts" - the initial claims that the "mandates" violate the Constitution because they treat citizens differently than people crossing the border - are only made by the State against the federal government. (Each of the first two amendments brought in new plaintiffs and new claims.)
  • (2)The AG's Office had to completely step away from the allegations brought by Phoenix's police union against the "contractor mandate" and how it might apply to officers - that will now only be PLEA versus the Administration. 
  • (3) The 3rd Stipulation asks Judge Mike Liburdi to consolidate the injunction request with the trial on the merits (for the non-immigration claims).

Tonight's stipulations come at the same time that the Sixth Circuit reversed an injunction on one portion of the anti-COVID "mandates". Brnovich had hoped to be the trailblazer in fighting the federal fight on the virus, and is still seeking a way to get this case to a place where Judge Liburdi might rule in his favor.

(Presumably, the 3rd Amended Complaint will include the name of the federal employee who had wished to remain anonymous; the Court rejected that request earlier this week. See below.)

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Original article, 12/15, 3pmNEW: Judge REJECTS Motion To Allow Federal Employee To Join Brnovich's Vaccine "Mandate" Suit As "John Doe"

U.S. District Court Judge Mike Liburdi today REJECTED a motion to allow a federal employee to anonymously join Arizona's lawsuit against the so-called "vaccine mandate" as a "John Doe". The October Motion was part of the first morphing of Attorney General Mark Brnovich's first-in-the-nation lawsuit against part of President Biden's plan to slow the spread of COVID-19.

Brnovich amended his Complaint to include the (proposed) John Doe, and teamed up with outside counsel Jack Wilenchik to claim that the employee feared retaliation if his medical exemption to not get vaccinated was not accepted by the U.S. (Brnovich has since morphed his Complaint again to include further claims, but he has failed to get traction in court as other AGs around the country have secured injunctions.)

Judge Liburdi flatly rejected the request to proceed pseudonymously (i.e. as a "John Doe") because there was not sufficient evidence that the employee was at risk. 

"As to Plaintiff’s vulnerability, Plaintiff does not allege any facts showing that he is particularly vulnerable; instead, Plaintiff concludes that “[h]is absolute vulnerability to retaliation weighs in favor of granting pseudonymity.” Because Plaintiff has failed to allege any facts showing that he is vulnerable to retaliation, this factor also weighs in favor of non-pseudonymity."

Liburdi weighed the other factors and concluded "(b)alancing the factors, Plaintiff has not demonstrated a reasonable threat of severe harm great enough to overcome the presumption in favor of access to judicial records."

This article was reported by AZ Law founder Paul Weich. Paul is currently running for a seat in Arizona's House of Representatives.

"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

AZ Law airs on non-profit Sun Sounds of Arizona, a statewide reading service that provides audio access to printed material for people who cannot hold or read print material due to a disability. If you know someone who could benefit from this 24/7 service, please let them know about member-supported Sun Sounds. And, YOU can donate or listen here. 

Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcasts.

Tuesday, December 14, 2021

UPDATE: Brnovich Files Unrequested Reply To Supreme Court in Arizona Abortion Case

UPDATE, 12/23: UPDATE: Brnovich Files Unrequested Reply To Supreme Court in Arizona Abortion Case

Supreme Court Justice Elena Kagan did not ask AZ AG Mark Brnovich to file a reply in his application for an order to allow Arizona's anti-abortion law to go into effect pending appeal, but reply he did. It is unlikely Kagan will consider the 21-page extra-argument filed last night, and it might get removed from the record.

Brnovich is asking the Supreme Court to permit the part of the law that would prohibit medical providers from performing an abortion if they know it is solely because of genetic abnormalities. District Court Judge Douglas Rayes blocked that portion and it is currently before the Ninth Circuit. 

Supreme Court Rules do not permit a reply unless requested by the Justice in charge of deciding the stay application. Brnovich's extraneous reply re-argues all of the conditions to receiving a stay from the court, and even manages to crack an egg reference over Kagan's head:

"Even if Roe and Casey apply, the Reason Regulation (as the district court held) does not impose a ban on pre-viability abortion, and Respondents otherwise failed (by putting all of their eggs in the “ban” basket) to establish an undue burden, thereby resulting in rational basis review. The Reason Regulation satisfies strict scrutiny, let alone rational basis."

It is not clear when Justice Kagan will rule.

 


UPDATE, 12/21 at 4pm: UPDATE: Supreme Court Can't Grant AZ AG Brnovich's Request To Allow Only One Small Section of AZ Abortion Law To Go Into Effect Pending Appeal, Opponents Argue

Opponents explained today why the U.S. Supreme Court cannot grant Arizona's request for part of the state's new anti-abortion law to go into effect while an appeal is still pending. The ACLU and Center for Reproductive Rights filed their Response with Justice Elena Kagan, and argued that AZ AG Mark Brnovich is engaging in "rank speculation" and that "granting a stay of one provision would only exacerbate the vagueness problems that plague the law, while imposing severe burdens on Plaintiffs, their patients, and their members’ patients."

A large part of their argument is based upon the AG's "disfavored" tack of asking the Supreme Court for a stay while the Court of Appeals is still hearing the appeal. 

"Defendants fall far short. First, and dispositively, they have not shown irreparable harm. Second, Defendants’ prediction of potential circuit splits relies on multiple layers of speculation about what the Ninth Circuit and several other circuit courts will do. Third, Defendants fail to provide any reason to disturb the district court’s well-reasoned preliminary injunction maintaining the status quo, resting on multiple grounds and the Reason Scheme as a whole."

There is no indication as to when Justice Kagan (as the Justice assigned to consider such motions from the 9th Circuit) will issue her ruling.

 

UPDATE, 12/16 at 11am: Supreme Court Justice Elena Kagan has asked the parties challenging Arizona's ban on abortions sought solely because of a genetic abnormality to file a response to Arizona's application to let the law go into effect while the court battle continues. The plaintiffs are being represented by the American Civil Liberties Union and the Center for Reproductive Rights - Kagan asked for the response(s) by next Tuesday, Dec. 21. (Kagan is the Justice assigned emergency actions from the 9th Circuit.)

Original Article, 12/14, 4:45pm: BREAKING: Brnovich Goes To U.S. Supreme Court On Arizona's New Abortion Law (READ Motion)

Arizona Attorney General Mark Brnovich is asking the U.S. Supreme Court to allow Arizona's new law prohibiting abortions due to genetic abnormalities to go into effect while lower courts are considering it. The request had been denied by Arizona's District Court Judge Douglas Rayes and the 9th Circuit.

Arizona's law - passed earlier this year and signed into law by Governor Doug Ducey - also contained a so-called "personhood provision" giving rights and privileges to the fetus; that provision was not blocked by the courts.

However, Judge Rayes did block the outright ban on abortions which could be proven to be solely due to genetic abnormalities.

Brnovich filed this emergency application with the U.S. Supreme Court this afternoon, on the basis that it is likely that at least four Supreme Court Justices would vote to review the issues surrounding Arizona's SB1457 ban, and there might be a vote to reverse the 9th Circuit's November 26 denial of a stay. The Supreme Court recently heard the Mississippi abortion ban, and on Friday declined to stay Texas's unusual abortion ban law.

This article was reported by AZ Law founder Paul Weich. Paul is currently running for a seat in Arizona's House of Representatives.

"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

AZ Law airs on non-profit Sun Sounds of Arizona, a statewide reading service that provides audio access to printed material for people who cannot hold or read print material due to a disability. If you know someone who could benefit from this 24/7 service, please let them know about member-supported Sun Sounds. And, YOU can donate or listen here. 

Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcasts.

Tuesday, December 7, 2021

AZ Supreme Court Will Look At Long-Running Corp. Commissioner Battle With APS Over Its 2014 Dark Money Spending

 Former Arizona Corporation Commissioner Bob Burns got an early Christmas gift from the Arizona Supreme Court today. The Court decided that they will take a look at his long-ago and long-running battle to subpoena APS and its parent company to divulge information about their extensive dark money political contributions in 2014.

While Burns is no longer a Commissioner and APS was separately forced to turn over many of the documents, today's agreement by the Court to consider some of the issues is an (interim) victory for Burns. He is specifically fighting for the right of future Commissioners to exercise investigatory powers even if other members of the five-member Commission oppose it.

Burns has waged this battle against both the utility and his then-fellow Commissioners since 2016, after APS/Pinnacle West had apparently secretly funneled millions of dollars to front groups and consultants in 2014 to elect its preferred candidates to the Commission which regulates them; more accurately, the nasty dark money campaign was more opposed to candidates the utility apparently feared. 

Sister site Arizona's Politics investigated and reported on the extensive dark money ties between APS, Treasurer-turned-Governor Doug Ducey, his first Chief of Staff Kirk Adams, and the then-Prince of Dark Money Sean Noble. Commissioner Burns dug in deeply on the APS angle.

The Supreme Court today decided it would not look into Burns' argument that he had the right to investigate whether his fellow Commissioners should have had to recuse themselves from rate-setting procedures involving the state's largest utility.

Briefing will take the next couple of months and oral argument will be scheduled. Below are Burns' Petition for Review and the Responses from both APS and the ACC.

This article was reported by AZ Law founder Paul Weich. Paul is currently running for a seat in Arizona's House of Representatives.

"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

AZ Law airs on non-profit Sun Sounds of Arizona, a statewide reading service that provides audio access to printed material for people who cannot hold or read print material due to a disability. If you know someone who could benefit from this 24/7 service, please let them know about member-supported Sun Sounds. And, YOU can donate or listen here. 

Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcasts.


A Crazy Defamation Suit Threat? Kari Lake's Attorney Threatens GOP Consultant, Invites Depo On Lake's Stability (READ Classic Ryan Retort)

A "nonsensical claim of defamation" could open Kari Lake up to a deposition to "explore the entire range of her mental health and stability."

When more than half of the social media universe is wondering whether the campaign of an Arizona gubernatorial frontrunner is just crazy or crazy like a fox, perhaps it is not the best idea to sic your attorney on a GOP political consultant.

Kari Lake ordered GOP attorney Tim LaSota to issue a cease and desist letter to Brian Murray, who also has been the Executive Director of the AZGOP. Murray had the temerity to question Lake's presumptions about Gov. Doug Ducey and her "media obsession". It was a mild tweet in questionable taste that only garnered one "like" and a couple of responses. (All the responses questioned his use of the word "bipolar".)

LaSota followed through, claiming that that word was defamatory, and that Murray does not have "carte blanche" just because Lake is a public figure. LaSota did not count on Murray retaining Chandler attorney and retorter extraordinaire Tom Ryan to respond on his behalf.

Ryan did not hold back. And, he invited LaSota to sue everyone who wonders about Lake. Read his response here: 

RESPONSE to Nonsensical Claim of Defamation by arizonaspolitics on Scribd

A lawsuit and ensuing deposition are unlikely.

This article was reported by AZ Law founder Paul Weich. Paul is currently running for a seat in Arizona's House of Representatives.

"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

AZ Law airs on non-profit Sun Sounds of Arizona, a statewide reading service that provides audio access to printed material for people who cannot hold or read print material due to a disability. If you know someone who could benefit from this 24/7 service, please let them know about member-supported Sun Sounds. And, YOU can donate or listen here. 

Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcasts.


Friday, December 3, 2021

NEW: Despite Injunctions Elsewhere, USDOJ Not Impressed With Brnovich's 3rd Try To Fight Vaccine "Mandate" (READ Opposition)

Despite adverse reactions from several judges around the country, the USDOJ this afternoon blasted Arizona Attorney General Mark Brnovich's latest effort to get an injunction against federal vaccine/testing requirements. The Department of Justice claims that the Executive Orders are "not a regulation of the general public" and that Arizona cannot show that it is harmed.

Brnovich rushed to file the action even before the federal government had put pen to paper, and has already had to re-start the process twice in response to developments. Trump-appointed Judge Mike Liburdi denied an injunction once before, but will likely soon consider this latest attempt.

The U.S. trashed the Arizona lawsuit in its introduction:


The DOJ's Response does acknowledge that it sent a letter "mandat(ing)" that the State accept a lease modification implementing vaccine/testing requirements. The State's Retirement System (ASRS) rents a building on North Central Avenue in Phoenix from the federal government. ASRS rejected the lease modification request, and the Response suggests that that does not rise to an injury. "But merely asking for a modification to a contract is not a legally cognizable injury. Arizona is free to reject these requests, as at least one State agency recently did." The attached letter, however, bolds the word "mandatory" and demands acceptance by November 14.

/GKL

This article was reported by AZ Law founder Paul Weich. Paul is currently running for a seat in Arizona's House of Representatives.

"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

AZ Law airs on non-profit Sun Sounds of Arizona, a statewide reading service that provides audio access to printed material for people who cannot hold or read print material due to a disability. If you know someone who could benefit from this 24/7 service, please let them know about member-supported Sun Sounds. And, YOU can donate or listen here. 

Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcasts.

Thursday, December 2, 2021

BREAKING(?): AZAG Mark Brnovich and Albert Einstein (Z''L) Finally Have Something In Common; Appeal Filed In Phoenix Suit Vs. BRB

Albert Einstein famously did NOT say that "the definition of insanity is doing the same thing over and over again and expecting a different result."* That quote may now also be attributed to Arizona Attorney General Mark Brnovich.

The AG's Office quietly acknowledged yesterday that it has appealed a ruling striking down parts of one of the Legislature's Budget Reconciliation Bills. The City of Phoenix brought the lawsuit against the provisions that interfered with the city's new ordinance setting out civilian oversight of the police department.  

Superior Court Judge John Hannah decided on November 2 that the "BRB" violated the single subject rule of the Arizona Constitution and constituted "log-rolling". 

That was the very same day that the Arizona Supreme Court dealt the Legislature a swift kick in the BRB butt, declaring that other similarly-logrolled bills also were unconstitutional. The Supreme Court made that ruling less than two hours after the AG's Office finished oral argument.



Two indications of Brnovich's reluctance to launch this doomed appeal may be that he waited until the last day to file the Notice of Appeal and that there was no trumpeting tweet or news release - only an out of the way posting of the document.

The City is represented by outside counsel. It might end up seeking reimbursement of its attorneys' fees for this appeal.

By the way, in case you did not click on the link above, the witty definition of insanity can apparently be credited to an anonymous participant in a 12-step program. 

* We love the Quote Investigator!

This article was reported by AZ Law founder Paul Weich. Paul is currently running for a seat in Arizona's House of Representatives.

"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

AZ Law airs on non-profit Sun Sounds of Arizona, a statewide reading service that provides audio access to printed material for people who cannot hold or read print material due to a disability. If you know someone who could benefit from this 24/7 service, please let them know about member-supported Sun Sounds. And, YOU can donate or listen here. 

Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcasts.

CALL OFF THE HOUNDS: No Contempt Hearing Against Fann/Senate Re: Election "Audit" Dox

 CALL OFF THE HOUNDS: Today's contempt hearing against @FannKfann / Arizona State Senate in (1 of) the public records lawsuits re: "audit" documents is CALLED OFF, by agreement of the parties.

(The stip-to-come is after @tomryanlaw & @PaulWeichAZ promised to live-tweet it.Winking face)

(LATER: The omni-present @KC_Haas (Yellow Sheet Report, subscription required) previously reported on Monday's hearing, and indicates that the reason for pulling the hearing was the active appeal going on.)

This article was reported by AZ Law founder Paul Weich. Paul is currently running for a seat in Arizona's House of Representatives.

"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

AZ Law airs on non-profit Sun Sounds of Arizona, a statewide reading service that provides audio access to printed material for people who cannot hold or read print material due to a disability. If you know someone who could benefit from this 24/7 service, please let them know about member-supported Sun Sounds. And, YOU can donate or listen here. 

Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcasts.

Secretary of State and Union Group File Separate Suits To Force Cochise County To Certify Election

 ( This is a developing story. Please check back later for updates .) "AZ Law" includes articles, commentaries and updates abo...